WENDY M BURT, Complainant
SKALESKI MOVING & STORAGE INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. The complainant, Wendy M. Burt, was hired by the respondent, Skaleski Moving & Storage, Inc. (Skaleski), on April 24, 2006, as a part-time helper.
2. Skaleski is a trucking company headquartered in Green Bay, Wisconsin.
3. In July of 2004, Ms. Burt obtained an instruction permit for a Class A commercial driver's license (CDL). Her goal was to obtain a CDL.
4. Prior to being hired by Skaleski, Ms. Burt accompanied her boyfriend, Chris Stanelle, who drove for Skaleski with a Class A CDL, on a trip and assisted him with the loading, packing, and unloading of his truck.
5. With a Class A CDL, a driver can drive any kind of truck, including combination tractor-trailers, and the trips can be for two to three weeks at a time. With a Class B CDL, a driver is limited in the kinds of trucks that can be lawfully driven, specifically single rather than combination vehicles, and trips are customarily shorter than two to three weeks.
6. Throughout the period of time at issue, Ms. Burt and Mr. Stanelle lived together with their three young children.
7. After being hired by Skaleski as a part-time helper, Ms. Burt continued to help Mr. Stanelle on his interstate deliveries. Her duties included assisting with loading and unloading his truck, and helping with packing services.
9. Ms. Burt was eventually hired as a full-time helper, and later promoted to the position of packer trainer by James Taggert, Skaleski's operations manager.
10. As a packer trainer, Ms. Burt trained other packers. She was a fast learner, did an excellent job packing, and was well liked by Skaleski's customers.
Mr. Taggert routinely received positive feedback from Skaleski's customers indicating that they liked Ms. Burt's personality and that she took good care of their belongings.
11. Shawn Skaleski, the owner of Skaleski, spoke with Ms. Burt about becoming a driver for Skaleski. Around the middle of 2007, he spoke with Mr. Taggart about moving Ms. Burt to a driving position.
13. Mr. Taggart observed Ms. Burt attempt to back up a large straight truck, not a combination tractor-trailer, on Skaleski's lot. She had difficulty positioning the truck within the lines at the loading dock, and Mr. Taggart eventually got into the truck and backed it up for her.
12. Ms. Burt had previous work experience at a childcare center, as a janitor, as a packager, and as a dishwasher/table busser. She had no work experience as a driver, and did not have any experience driving heavy farm vehicles.
13. Skaleski hired Corey Ermis, a male, after Ms. Burt was hired, and offered to send him to Class A driving school. He had experience as a farm worker, driving four wheel drive tractors, and pulling wagons and various kinds of implements. He did attend Class A driving school, and drove for Skaleski with a Class A CDL.
14. Skaleski hired Michael Ristlie, a male, after Ms. Burt was hired, and offered to send him to Class A driving school. Mr. Ristlie already had a Class B CDL, and 13 years of driving experience with that CDL. He declined the offer to go to Class A driving school because he did not want to go on two to three-week trips at a time, preferring to spend more time with his family.
15. Skaleski hired Adam Sokol, a male, in December, 2008, as a part-time laborer. He had previously worked on his family's farm for seven to eight years, driving a tractor-trailer, tractors and dump trucks, and working around heavy equipment. In the spring of 2009, Skaleski offered to send him to Class A driving school, and he accepted. Subsequently, he took many trips that required a Class A CDL, including to the east coast and the south.
16. In the spring of 2009, Skaleski offered to send Ms. Burt to Class B driving school. Mr. Taggart recommended that she be sent to Class B driving school rather than Class A driving school because he did not believe she was ready to handle an 18-wheel tractor/trailer at that time, in part due to his observations of her driving on the lot and in part due to her lack of previous driving experience, particularly with tractor-trailers and other heavy trucks.
17. Ms. Burt attended Class B driving school, and earned a Class B CDL. She was subsequently sent by Skaleski on a two-week, long haul trip, and was put on Skaleski's driving schedule.
18. John Mueller, Ms. Burt's instructor at driving school, had over 20 years of experience as a driving instructor. He believed, based on what he understood of her lack of skills, that it was logical for Ms. Burt to start in Class B driving school and progress to Class A.
19. Skaleski offered to send Mr. Ermis and Mr. Ristlie to Class A driving school before offering to send Ms. Burt to Class B driving school for legitimate, nondiscriminatory reasons unrelated to gender.
20. Skaleski offered to send Mr. Sokol to Class A driving school at the same time Skaleski offered to send Ms. Burt to Class B driving school for legitimate, nondiscriminatory reasons unrelated to gender.
1. Skaleski is an employer within the meaning of the Wisconsin Fair Employment Act (WFEA).
2. Skaleski did not discriminate against Ms. Burt, in violation of the WFEA, in regard to terms and conditions of her employment, on the basis of sex.
3. Skaleski did not discriminate against Ms. Burt, in violation of the WFEA, in regard to compensation, on the basis of sex.
4. Skaleski did not discriminate against Ms. Burt, in violation of the WFEA, in regard to promotion, on the basis of sex.
The complaint in this matter is dismissed with prejudice.
Dated and mailed April 8, 2013
burtwen : 120 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission has rewritten the ALJ's decision, retaining some of his findings of fact, modifying others, and adding additional findings to more accurately reflect the record, as well as affirming his conclusions of law. He interpreted Ms. Burt's complaint to claim sex discrimination in terms and conditions of employment, in compensation, and in regard to promotion. The commission agrees that these claims most accurately reflect Ms. Burt's allegations.
As to Ms. Burt's claim relating to compensation, her complaint included an allegation that she was occasionally not paid mileage pay while assisting the driver on trips. However, at the hearing, there was no evidence presented relating to this allegation. In addition, there was no evidence presented about her wages as a loader/packer or the expected wages of a Class A driver or a Class B driver, and she has not raised these issues in her petition for commission review. Accordingly, the commission does not address the compensation allegation here, other than to note that Ms. Burt has not established that Skaleski discriminated against her in regard to compensation, based on sex.
Instead, the commission has focused on what appears to be Ms. Burt's main claim, specifically that the terms and conditions of employment were discriminatory, i.e., her job assignments as a loader/packer, rather than as a driver, and providing her with the Class A driver school training, rather than the Class B training. This would also include the promotion claim, so they are combined in the analysis.
In her petition for commission review, Ms. Burt alleges inadequate representation by her attorney (who dropped the representation after the ALJ issued his decision), specifically his failure to return telephone calls, failure to get all subpoenas out, and failure to notify her of possible amendments to her complaint. She has not identified who should have been subpoenaed but was not, nor has she identified the amendments that might have been made to her complaint. However, four male drivers testified on her behalf, including her boyfriend, and the ALJ considered three bases of discrimination - terms and conditions, compensation, and promotion - allowing considerable opportunities for her to provide supporting evidence. It may be that the complainant wanted to argue that she was constructively discharged, as her attorney indicated in his prehearing letter to the ALJ. However, the ALJ properly sustained the respondent's objection to testimony on that matter, since that claim was not made in her complaint. (1) Finally, the commission has consistently held that actions by a party's attorney do not provide a basis for setting aside an ALJ's decision and granting a further hearing. See, e.g., Crawford v. Wiza Industries LLC, ERD Case No. CR200503691 (LIRC Oct. 20, 2006), and cases cited therein. In any case, the commission's review of the record establishes that the complainant's attorney undertook a vigorous presentation of Ms. Burt's case during the hearing.
The complainant also responds to each of the ALJ's findings of fact, disputing many and arguing about the significance of several. The commission has summarized her disputes and arguments. Some have merit and others do not.
The complainant disputes several findings of fact, specifically that she was ever a part-time helper; that her driving trip with her boyfriend was long distance; that she was ever a packer trainer or lead packer; and that Jason Rosatto (Risotto) was ever a driver. However, at the hearing, she testified that she was hired as a part-time helper; her boyfriend testified that their driving trip was one week; and she testified that she was a packer trainer. These disputes are without any merit. However, the commission has not included any factual findings with regard to Jason Risotto because the record does not reflect that he was ever a driver for Skaleski, as the complainant argues.
The complainant disputes the ALJ's finding of fact that Mr. Taggert recommended that Ms. Burt not be sent to Class A driving school because she lacked "a stable home situation." The commission agrees, and has not included that factual finding in its rewritten decision. The only evidence in the record relating to Ms. Burt's lack of a stable home situation came from Mr. Taggert's testimony about a conversation he had with Ms. Burt after she obtained her Class B CDL and had returned from her long driving trip. This could not have played a role in Skaleski's actions related to sending her to driving school, and there was no evidence presented of any instability at home until this conversation. As to her dispute that she ever told Mr. Taggert not to assign her to any more long-distance trips due to a difficult home situation, Mr. Taggert testified to that conversation and it is reasonable to infer that the ALJ found that testimony credible. The commission has no reason to disagree with the ALJ in that regard, but has not included that factual finding since it is not relevant to the matters in dispute.
The complainant argues that the opinion expressed by the driving school trainer, Mr. Mueller, that it was appropriate for her to start her driver training with Class B training, was only his opinion, and that he also said she could have learned to drive a Class A vehicle. Although this is a legitimate argument, his opinion, by the nature of his position and experience, would be entitled to considerable weight, and he did not support Ms. Burt's argument that she should have been sent to Class A driving school. He also testified that Class B was a good level for Ms. Burt because she had no driving experience and no background of operating any type of equipment, and this is also the reason that Skaleski's owner gave for offering to put the men, all of whom had driving experience with heavy trucks, in driving school before Ms. Burt.
The complainant also argues that Mr. Taggert observed her successfully backing a tractor-trailer Class A vehicle in a parking lot stall, and that two of the men who were sent to Class A driving school had problems with this. While this may be true, there is no evidence in the record that the men had difficulty backing up a tractor-trailer. Also, Taggart observed her having trouble backing up a straight truck, and finally got into the truck to do it himself. The complainant initially denied that this had occurred until she was reminded of her deposition testimony and then acknowledged the incident, raising a question about her credibility.
The complainant also disputes the ALJ's finding that three of the men, including Mr. Risotto, had experience driving and operating Class A vehicles. She is correct, at least in part. There was testimony that Mr. Sokol had experience driving a tractor/trailer, but no evidence that the two others had such experience.
Mr. Taggert testified that Mr. Ermis had been a farm worker, and was used to driving farm vehicles, and there was testimony that Mr. Risotto was hired with "moving" experience and that Mr. Taggert thought he had some driving experience. However, there was no testimony that farm vehicles are Class A vehicles. In addition, Ms. Burt asserts in her petition that a minor can operate farm equipment because of the weight and length of the trailers, and that these vehicles operate totally differently from the "semis" because farm equipment does not have air brakes and cannot have the same gross vehicle weight of 80,000 pounds. However, she simply makes these assertions in her petition. This argument was not fleshed out at the hearing, with sworn testimony from witnesses. The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. For this reason, the commission cannot consider factual assertions made in the petition for review which were not also made at the hearing. Since the commission's review must be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider factual assertions made by the complainant which are not supported by the record.
The complainant's remaining factual disputes relate to matters unrelated to her complaint, including the reasons why she and her boyfriend quit their employment with Skaleski.2(2) Accordingly, the commission does not address those arguments.
The commission notes that Ms. Burt has alleged two discriminatory actions by Skaleski - that she was discriminated against, in violation of the Wisconsin Fair Employment Act (WFEA), on the basis of sex, when Skaleski sent men (who were hired after she was) to driving school before sending her to driving school, and when Skaleski sent her to Class B driving school, but sent the men to Class A driving school, a higher level driving school. Therefore, in this case on the merits,
Ms. Burt must establish by a preponderance of evidence that Skaleski's reasons for taking the actions that it did were discriminatory, because Ms. Burt is a woman.
In order to state a prima facie case of discrimination by failure to promote, the complainant must show that she belongs to a protected group, that she was qualified and applied for a promotion, that she was denied the promotion, and that other employees of similar qualifications who were not in the protected group, were promoted instead. It is not necessary for the complainant to establish at this initial stage that she was the most qualified person for the promotion.
Foust v. City of Oshkosh Police Dept., ERD Case No. 9200216 (LIRC April 9, 1998), citing
Freeman
v. Lewis, 675 F.2d 398, 400 (D.C. Cir. 1982) and Bolden v. Wisconsin Telephone Co., ERD Case No. 7605319 (LIRC Aug. 4, 1981).
However, the commission has consistently held that once the respondent has articulated a legitimate nondiscriminatory reason for discharge the question of whether the complainant has established a prima facie case becomes moot. See, Theusch v. Steel Craft Corp. of Hartford, ERD Case No. 199601535 (LIRC May 22, 1998), citing Gentilli v. Badger Coaches (LIRC, July 12, 1990), aff'd. sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct. Jan. 15, 1991) and U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Binversie v. Alaark Mfg. Corp., ERD Case No. 199901928 (LIRC June 27, 2001). Once a legitimate nondiscriminatory reason is articulated, the burden of proof reverts to the complainant to show that this reason is a pretext for discrimination. Naill v. Western Wisconsin Technical College, ERD Case Nos. 199404088, 199600370 (LIRC Feb. 12 1999), citing Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172 (Ct. App. 1985). The commission has interpreted "pretext" to mean a "dishonest explanation, a lie rather than an oddity or an error." Bialk v. Aurora Health Care, ERD Case No. CR200700068 (LIRC April 23, 2010). See also Ebner v. Dura Tech, ERD Case No. CR200504645 (LIRC April 23, 2009), quoting Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (the "focus of a pretext inquiry is whether the stated reason for an action is honest, not whether it is accurate, wise, or well-considered").
The complainant must show not only that the respondent's asserted reasons for failing to send her to Class A driving school were false, but that sex discrimination was the real reason. It is possible to prove pretext, even in the absence of any direct evidence of discriminatory intent, by showing that the employer's explanation is unworthy of credence. See
Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000). However, as noted in
Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001), citing
Stewart v. Henderson, 207 F.3d 374 (7th Cir. 2000), courts do not sit as a superpersonnel department to second guess an employer's business decision.
In this case, Ms. Burt has not established by a preponderance of the evidence that Skaleski's asserted reasons for sending the men to driving school (and to Class A driving school) before sending her were a pretext. It makes sense that a moving and storage company would prefer to hire and promote individuals with experience and demonstrated skills, even if that experience comes from working on a farm, driving heavy vehicles, and a familiarity with handling heavy equipment. That, in and of itself, is not discrimination based upon sex. Had there been a woman passed over for driving school who had such experience, whether on a farm or from previous work for a truck manufacturer or a tow truck business or elsewhere, the commission would view this matter differently. But, in this case, Ms. Burt had no truck driving experience and no experience dealing with heavy equipment or heavy vehicles, and the men who were sent to driving school did have that experience. The operations manager had also observed her having difficulty backing up a straight truck. As noted in the
Stewart case cited above, it is not the job of courts (or the commission) to act as a "superpersonnel department" and second guess employers' business decisions.
In addition, the commission notes that the employer did send Ms. Burt to truck driving school within a couple of years of her expression of interest and, although that was to Class B school, Skaleski's rationale was again related to her lack of experience and to observations made of her lack of skills on one occasion. There was testimony that this was a logical first step for someone wanting to be a driver but having no experience, and there was at least one male driver working for Skaleski who preferred a Class B CDL, rather than a Class A CDL.
cc:
Attorney Joseph Recka
Attorney Michael Cieslewicz
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